MENACE OF INSIDER TRADING IN THE EMERGING FINANCIAL MARKETS - WITH A SPECIAL FOCUS ON INDIAN REGULATORY FRAMEWORK
By K P C Rao.,
LLB., FCS., FCMA
"A company's confidential information qualifies as property to which the company has a right of exclusive use. The undisclosed misappropriation of such information in violation of a fiduciary duty constitutes fraud akin to embezzlement – the fraudulent appropriation to one's own use of the money or goods entrusted to one's care by another."
-U S Supreme Court
I. EMERGING FINANCIAL MARKETS
The World economy has been experiencing a progressive international economic integration for the last half a century. There has been a marked acceleration in this process of globalization and also liberalization during the last three decades. Every modern economy is based on a sound financial system which helps in production, capital and economic growth by encouraging savings habits, mobilizing savings from households and other segments and allocating savings into productive usage such as trade, commerce, manufacture etc.
A financial system is a set of institutional arrangements through which financial surpluses are mobilized from the units generating surplus income and transferring them to the others in needs of them. The main factors influence the capital market and its growth are level of savings in the household sector, taxation levels, health of economy, corporate performance, industrial trends and common patterns of living.
Meaning and Segments of Financial Markets
What are the financial markets? If you are confused, there is a good reason. That’s because financial markets go by many terms, including capital markets, money market, securities market even the markets. Some experts even simply refer to it as the stock market, even though they are referring to stocks, bonds and commodities.
In economics, a financial market is a mechanism that allows people to buy and sell (trade) financial securities (such as stocks and bonds), commodities (such as precious metals or agricultural goods), and other fungible items of value at low transaction costs and at prices that reflect the efficient-market hypothesis.
Quite simply, that is what the financial markets are - any type of financial transaction that you can think of that helps businesses grow and investors make money. The financial markets have two major components, (1) the money market and (2) the capital market. The money market refers to the market where borrowers and lenders exchange short-term funds to solve their liquidity needs. The Capital Market is a market for financial investments that are direct or indirect claims to capital. It is wider than the Securities Market and embraces all forms of lending and borrowing, whether or not evidenced by the creation of a negotiable financial instrument. The money market possesses different operational features as compared to capital market. It deals with raising and deployment of funds for short duration while the capital market deals with long-term funding. The money market provides the institutional source for providing working capital to the industry, while the capital market offers long-term capital for financing fixed assets.
The Securities Market, however, refers to the markets for those financial instruments/claims/obligations that are commonly and readily transferable by sale. The Securities Market has two ‘inter-dependent’ and ‘inseparable segments’, viz., (1) the primary market (new issues) and (2) the secondary market (stock).
History of India Financial Market
The history of Indian capital markets spans back 200 years, around the end of the 18th century. It was at this time that India was under the rule of the East India Company. The capital market of India initially developed around Mumbai with around 200 to 250 securities brokers participating in active trade during the second half of the 19th century.
Indian Financial market comprise of primary market, Foreign Direct Investments (FDIs) alternative investment options, banking and insurance and the pension sectors, asset management segment as well. With all these elements in the India Financial market, it happens to be one of the oldest across the globe and is definitely the fastest growing and best among all the financial markets of the emerging economies.
The financial market in India at present is more advanced than many other sectors as it became organized as early as the 19th century with the securities exchanges in Mumbai, Ahmedabad and Kolkata. In the early 1960s, the number of securities exchanges in India became eight - including Mumbai, Ahmedabad and Kolkata. Apart from these three exchanges, there was the Madras, Kanpur, Delhi, Bangalore and Pune exchanges as well. Today there are 21 regional securities exchanges in India which are in operational out of 25 exchanges. (Recognition of 4 stock exchanges have been withdrawn by SEBI on different grounds)
Though, the Indian stock markets have remained stagnant till 1990 due to the rigid economic controls, it was only in 1991, after the liberalization process that the Indian stock market witnessed a flurry of IPOs serially. The market saw many new companies spanning across different industry segments and business began to flourish.
The launch of the NSE (National Stock Exchange) and the OTCEI (Over the Counter Exchange of India) in the mid 1990s helped in regulating a smooth and transparent form of securities trading.
The regulatory body for the Indian capital markets was the SEBI (Securities and Exchange Board of India). The capital markets in India experienced turbulence after which the SEBI came into prominence. The market loopholes had to be bridged by taking drastic measures.
Indian Financial Market helps in promoting the savings of the economy and helping to adopt an effective channel to transmit various financial policies. The Indian financial sector is well-developed, competitive, efficient and integrated to face all shocks. In the India financial market there are various types of financial products whose prices are determined by the numerous buyers and sellers in the market. The other determinant factor of the prices of the financial products is the market forces of demand and supply. The various other types of Indian markets help in the functioning of the wide India financial sector.
Securities Market Reforms and Development
The development of the securities market what we are seeing today did not happen overnight. Though the historical records relating to securities market in India is meager and obscure, there is evidence to indicate that the loan securities of the East Indian Company used to be traded towards close of the 18th century. By 1830’s, the trading in shares of banks started. The trader by the name of broker emerged in 1830 when 6 persons called themselves as share brokers. This number grew gradually. Till 1850, they traded in shares of banks and securities of the East India Company in Mumbai under a sprawling Banyan Tree in front of the Town Hall, which is now in the Horniman Circle Park. It is no surprise that the majestic Phiroze Jeejeebhoy Towers is located at the Horniman Circle. In 1850, the Companies Act introducing limited liability was enacted heralding the era of modern joint stock company which propelled trading volumes.
The American Civil War broke out in 1861 which cut off supply of cotton from the USA to Europe. This heightened the demand for cotton from India. Cotton prices increased. Exports of cotton grew, payments were received in bullion. The great and sudden spurt in wealth produced by cotton price propelled setting up companies for every conceivable purpose. Between 1863 and 1865, the new ventures raised nearly ` 30 crore in the form of paid up capital and nearly ` 38 crore of the premia. Rarely was a share which did not command a premium between 1861 and 1865. The Back Bay Reclamation share with `5,000 paid up was at ` 50,000 premium, the Port Canning share with ` 1,000 paid up was at ` 11,000 premium, etc. There was a share mania and everybody was after a piece of paper, variously called ‘allotments’, ‘scrips’ and ‘shares’. The people woke up only when the American Civil war ended. Then all rushed to sell their securities but there were no buyers. They were left with huge mass of un-saleable paper. This occurred then. This also occurs today at regular intervals. However, the bubbles and burst continue to be a perennial feature of the securities market world over.
The depression was so severe that it paved way for setting up of a formal market. The number of brokers, which had increased during the civil war to about 250, declined. During the civil war, they had become so influential and powerful that even the police had only salams for them. But after the end of the civil war, they were driven from pillar to post by the police. They moved from place to place till 1874 when they found a convenient place, which is now appropriately called Dalal Street after their name. They organized an informal association on or about 9th July 1875 for protecting their interests. On 3rd December 1887, they established a stock exchange called ‘Native Share and Stock Brokers’ Association’. This laid the foundation of the oldest stock exchange in India. The word ‘native’ indicated that only natives of India could be brokers of the Exchange.
In 1880s a number textile mills came up in Ahmedabad. This created a need for trading of shares of these mills. In 1894, the brokers of Ahmedabad formed "The Ahmedabad Share and Stock Brokers' Association".
The 1870s saw a boom in jute prices, 1880s and 1890s saw boom in tea prices, then followed coal boom. When the booms ended, there were endless differences and disputes among brokers in eastern India which was home to production of jute, tea and coal. This provoked the establishment of "The Calcutta Stock Exchange Association" on June 15, 1908.
Then followed the proliferation of exchanges, many of them even do not exist today. The rest is history.
Control of capital issues was introduced through the Defence of India Rules in 1943 under the Defence of India Act, 1939 to channel resources to support the war effort. The control was retained after the war with some modifications as a means of controlling the raising of capital by companies and to ensure that national resources were channeled to serve the goals and priorities of the government, and to protect the interests of investors. The relevant provisions in the Defence of India Rules were replaced by the Capital Issues (Continuance of Control) Act in April 1947.
Though the stock exchanges were in operation, there was no legislation for their regulation till the Bombay Securities Contracts Control Act was enacted in 1925. This was, however, deficient in many respects. Under the constitution which came into force on January 26, 1950, stock exchanges and forward markets came under the exclusive authority of the central government. Following the recommendations of the A. D. Gorwala Committee in 1951, the Securities Contracts (Regulation) Act, 1956 was enacted to provide for direct and indirect control of virtually all aspects of securities trading and the running of stock exchanges and to prevent undesirable transactions in securities.
March Forward to 1990s
In 1980s and 19990s, it was increasingly realized that an efficient and well developed securities market is essential for sustained economic growth. The securities market fosters economic growth to the extent it augments the quantities of real savings and capital formation from a given level of national income and it raises productivity of investment by improving allocation of investible funds. The extent depends on the quality of the securities market. In order to improve the quality of the market, that is, to improve market efficiency, enhance transparency, prevent unfair trade practices and bring the Indian market up to international standards, a package of reforms consisting of measures to liberalise, regulate and develop the securities market is being implemented since early 1990s. The package included liberalization, regulation and development:
The more liberalised a securities market is, the better is its impact on economic growth. Interventions in the securities market were originally designed to help governments expropriate much of the seignior age and control and direct the flow of funds for favoured uses. These helped governments to tap savings on a low or even no-cost basis. Besides, government used to allocate funds from the securities market to competing enterprises and decide the terms of allocation. The result was channelisation of resources to favoured uses rather than sound projects. In such circumstances accumulation of capital per se meant little, where rate of return on some investments were negative while extremely remunerative investment opportunities were foregone. This kept the average rate of return from investment lower than it would otherwise have been and, given the cost of savings, the resulting investment was less than optimum. Hence, it was necessary to do away interventions hindering optimum allocation of resources.
Our laws provide an inclusive definition of ‘securities’. It says that ‘securities’ include shares, bonds, debentures, units of CIS, etc. It does not define in terms of ingredients an instrument must have to be considered as ‘securities’. We hardly come across this ‘ingredient type of’ definition’ of ‘securities’ in any other jurisdiction. It is precisely because ‘securities’ are most insecure instruments. The only ingredient common to all types of securities is its associated ‘insecurity’. If it is a market for such insecure instruments, market would collapse if somebody does not regulate away the insecurities.
We need regulations to correct for identified market imperfections which produce sub-optimal outcomes and to prevent market failures. In the absence of regulation by a specialized agency, each participant would do its own due diligence before undertaking any transaction in the market. This imposes huge social costs. Besides, regulations signal minimum standards of quality and hence enhance confidence in markets. With a known asymmetric information problem, risk averse investors may exit the market altogether if such minimum standards are not signaled. In its extreme form the market breaks down completely.
There is an apparent contradiction that the reforms aim at liberalization while regulations appear to restrict liberalization. Liberalisation does not mean scrapping of all codes and statutes, as some market participants may wish. It rather means replacement of one set by another set of more liberal code / statute, which allow full freedom to economic agents, but influence or prescribe the way they should carry out their activities, so that the liberalized markets operate in an efficient and fair manner and the risks of systemic failure are minimized. It is, however, desirable to keep in mind the contradiction to ensure that we do not resort to excessive regulation and regulations are designed and implemented properly. Otherwise the costs of regulation would exceed the benefits from regulation.
Unless you develop market, what do you regulate? Unless there is regulation, how does the market develop? It is a chicken and egg issue. Regulation is necessary to develop market and once the market develops, it needs to be regulated. That is why many of the reform initiatives combine the elements of regulation and development. Besides, some developmental measures are introduced as a part of general programme for economic and political development. The macroeconomic policies relating to interest rate, prices, etc can have salubrious effect on the growth and development of the securities market. Other developmental measures include provision of reliable payment system and clearing mechanism, standardized accounting procedure, good corporate governance, skilled manpower etc. which improve the efficiency and transparency of the market.
Although the reforms in true sense happened since early 1990s but the reforms in securities market in India have taken place after the establishment of the SEBI in 1992. These reforms have been designed and implemented jointly by all stakeholders, including the government, the regulator, and the regulated.
A few major reforms are furnished below:
a) Control over Issue of Capital
A major initiative of liberalisation was the repeal of the Capital Issues (Control) Act, 1947 in May 1992. With this, Government’s control over issue of capital, pricing of the issues, fixing of premia and rates of interest on debentures etc. ceased and the market was allowed to allocate resources to competing uses. In the interest of investors, SEBI issued Disclosure and Investor Protection (DIP) guidelines. The guidelines allow issuers, complying with the eligibility criteria, to issue securities the securities at market determined rates. The market moved from merit based to disclosure based regulation.
b) Establishment of Regulator
A major initiative of regulation was establishment of a statutory autonomous agency, called SEBI, to provide reassurance that it is safe to undertake transactions in securities. It was empowered adequately and assigned the responsibility to (a) protect the interests of investors in securities, (b) promote the development of the securities market, and (c) regulate the securities market. Its regulatory jurisdiction extends over corporate in the issuance of capital and transfer of securities, in addition to all intermediaries and persons associated with securities market. All market intermediaries are registered and regulated by SEBI. They are also required to appoint a compliance officer who is responsible for monitoring compliance with securities laws and for redressal of investor grievances.
c) Screen Based Trading
A major developmental initiative was a nation-wide on-line fully-automated screen based trading system (SBTS) where a member can punch into the computer quantities of securities and the prices at which he likes to transact and the transaction is executed as soon as it finds a matching sale or buy order from a counter party. SBTS electronically matches orders on a strict price/time priority and hence cut down on time, cost and risk of error, as well as on fraud resulting in improved operational efficiency. It allowed faster incorporation of price sensitive information into prevailing prices, thus increasing the informational efficiency of markets. It enabled market participants to see the full market on real-time, making the market transparent. It allowed a large number of participants, irrespective of their geographical locations, to trade with one another simultaneously, improving the depth and liquidity of the market – over 10,000 terminals creating waves by clicks from over 400 towns / cities in India. It provided full anonymity by accepting orders, big or small, from members without revealing their identity, thus providing equal access to everybody. It also provided a perfect audit trail, which helps to resolve disputes by logging in the trade execution process in entirety.
The SBTS shifted the trading platform from the trading hall of an exchange to brokers’ premises. It was then shifted to the PCs in the residences of investors through the Internet and to hand-held devices through WAP for convenience of mobile investors. This made a huge difference in terms of equal access to investors in a geographically vast country like India.
d) Risk management
A number of measures were taken to manage the risks in the market so that the participants are safe and market integrity is protected. These include:
i) Trading Cycle
The trading cycle varied from 14 days for specified securities to 30 days for others and settlement took another fortnight. Often this cycle was not adhered to. This was euphemistically often described as T+ anything. Many things could happen between entering into a trade and its performance providing incentives for either of the parties to go back on its promise. This had on several occasions led to defaults and risks in settlement. In order to reduce large open positions, the trading cycle was reduced over a period of time to a week initially. Rolling settlement on T+5 basis was introduced in phases. All scrips moved to rolling settlement from December 2001. T+5 gave way to T+3 from April 2002 and T+2 from April 2003.
Settlement system on Indian stock exchanges gave rise to settlement risk due to the time that elapsed before trades are settled. Trades were settled by physical movement of paper. This had two aspects. First, the settlement of trade in stock exchanges by delivery of shares by the seller and payment by the purchaser. The process of physically moving the securities from the seller to the ultimate buyer through the seller’s broker and buyer’s broker took time with the risk of delay somewhere along the chain. The second aspect related to transfer of shares in favour of the purchaser by the company. The system of transfer of ownership was grossly inefficient as every transfer involved physical movement of paper securities to the issuer for registration, with the change of ownership being evidenced by an endorsement on the security certificate. In many cases the process of transfer took much longer, and a significant proportion of transactions ended up as bad delivery due to faulty compliance of paper work. Theft, forgery, mutilation of certificates and other irregularities were rampant, and in addition the issuer had the right to refuse the transfer of a security. All this added to costs, and delays in settlement, restricted liquidity and made investor grievance redressal time consuming and at times intractable.
To obviate these problems, the Depositories Act, 1996 was passed to provide for the establishment of depositories in securities with the objective of ensuring free transferability of securities with speed, accuracy and security by (a) making securities of public limited companies freely transferable subject to certain exceptions; (b) dematerialising the securities in the depository mode; and (c) providing for maintenance of ownership records in a book entry form. In order to streamline both the stages of settlement process, the Act envisages transfer of ownership of securities electronically by book entry without making the securities move from person to person. Currently 99% of market capitalization is dematerialized and 99.9% of trades are settled by delivery.
To assist market participants to manage risks better through hedging, speculation and arbitrage, the Securities Contracts (Regulation) Act,1956, (SCRA) was amended in 1995 to lift the ban on options in securities. The SCRA was amended further in December 1999 to expand the definition of securities to include derivatives so that the whole regulatory framework governing trading of securities could apply to trading of derivatives also. A three-decade old ban on forward trading, better known as BADLA, which had lost its relevance and was hindering introduction of derivatives trading, was withdrawn. Derivative trading took off in June 2000 on two exchanges.
iv) Settlement Guarantee
A variety of measures were taken to address the risk in the market. Clearing corporations emerged to assume counter party risk. Trade and settlement guarantee funds were set up to guarantee settlement of trades irrespective of default by brokers. These funds provide full novation and work as central counter party. The Exchanges /clearing corporations monitor the positions of the brokers on real time basis.
Various measures taken over last decade or so have yielded considerable benefits to the market, as evidenced by the growth in number of market participants, growth in volumes in securities transactions, increasing globalization of the Indian market, reduction in transaction costs, and compliance with international standards.
Insider trading is the trading of a corporation's stock or other securities (e.g. bonds or stock options) by individuals with potential access to non-public information about the company. In most countries, trading by corporate insiders such as officers, key employees, directors, and large shareholders may be legal, if this trading is done in a way that does not take advantage of non-public information. However, the term is frequently used to refer to a practice in which an insider or a related party trades based on material non-public information obtained during the performance of the insider's duties at the corporation, or otherwise in breach of a fiduciary or other relationship of trust and confidence or where the non-public information was misappropriated from the company.
It was the Sunday Times of UK that coined the classic phrase in 1973 to describe this sentiment - "the crime of being something in the city", meaning that insider trading was believed as legitimate at one time and a law against insider trading was like a law against high achievement. It is the trading that takes place when those privileged with confidential information about important events use the special advantage of that knowledge to reap profits or avoid losses on the stock market, to the detriment of the source of the information and to the typical investors who buy or sell their stock without the advantage of "inside" information. Almost eight years ago, India's capital markets watchdog – the Securities and Exchange Board of India organised an international seminar on capital market regulations. Among others issues, it had invited senior officials of the Securities and Exchange Commission to tell us how it tackled the ‘menace of insider trading’.
II. AIMS / OBJECTS OF THE STUDY
The following are the objectives of the study:-
1) To find out the reasons for insider trading.
2) To find out to what extent this evil permeated in the financial system and the resultant consequences and overall impact on the society.
3) To suggest suitable measures in the Indian regulatory framework to stop this menace.
4) To give reasons for the suggestions based on empirical research.
III. SIGNIFICANCE OF THE TOPIC OF RESEARCH
It was only about three decades back that insider trading was recognized in many developed countries as what it was - an injustice; in fact, a crime against shareholders and markets in general. At one time, not so far in the past, inside information and its use for personal profits was regarded as a perk of office and a benefit of having reached a high stage in life.
In the United States and Germany, for mandatory reporting purposes, corporate insiders are defined as a company's officers, directors and any beneficial owners of more than ten percent of a class of the company's equity securities. Trades made by these types of insiders in the company's own stock, based on material non-public information, are considered to be fraudulent since the insiders are violating the fiduciary duty that they owe to the shareholders. The corporate insider, simply by accepting employment, has undertaken a legal obligation to the shareholders to put the shareholders' interests before their own, in matters related to the corporation. When the insider buys or sells based upon company owned information, he is violating his obligation to the shareholders.
For example, illegal insider trading would occur if the chief executive officer of Company X learned (prior to a public announcement) that Company X will be taken over, and bought shares in Company X knowing that the share price would likely rise.
In the United States and many other jurisdictions, however, "insiders" are not just limited to corporate officials and major shareholders where illegal insider trading is concerned, but can include any individual who trades shares based on material non-public information in violation of some duty of trust. This duty may be imputed; for example, in many jurisdictions, in cases of where a corporate insider "tips" a friend about non-public information likely to have an effect on the company's share price, the duty the corporate insider owes the company is now imputed to the friend and the friend violates a duty to the company if he or she trades on the basis of this information.
In the United States and several other jurisdictions, trading conducted by corporate officers, key employees, directors, or significant shareholders must be reported to the Regulator or publicly disclosed, usually within a few business days of the trade. Many investors follow the summaries of these insider trades in the hope that mimicking these trades will be profitable. While "legal" insider trading cannot be based on material non-public information, some investors believe corporate insiders nonetheless may have better insights into the health of a corporation and that their trades otherwise convey important information.
But one of the main reasons that capital is available in such quantities in the markets is basically that the investor trusts the markets to be fair. Fairness is a major issue. Even though it sounds simplistic, it is a critical factor and one that is absent, really to a surprising degree in many of the sophisticated foreign markets. The common belief in Europe that certain investors have access to confidential information and regularly profit from that information may be the major reason why comparatively few Europeans actually own stock. Indeed, the European Economic Community has formally recognized the importance of insider trading prohibitions by passing a directive requiring its members to adopt insider trading legislation. The preamble to the directive stresses the economic importance of a healthy securities market, recognizes that maintaining healthy markets requires investor confidence and acknowledges that investor confidence depends on the "assurance afforded to investors that they are placed on an equal footing and that they will be protected against the improper use of inside information." These precepts echo around the world as reports of increased insider trading regulation and enforcement efforts are daily news.
Insider Trading Law in the US
Rooted in the common law tradition of England, the US legal system has relied largely on the courts to develop the law prohibiting insider trading. The United States Department of Justice has played the largest role in defining the law of insider trading.
After the United States stock market crash of 1929, Congress enacted the Securities Act of 1933 and the Securities Exchange Act of 1934, aimed at controlling the abuses believed to have contributed to the crash. The 1934 Act addressed insider trading directly through Section 16(b) and indirectly through Section 10(b).
Section 16(b) prohibits short-swing profits (profits realized in any period less than six months) by corporate insiders in their own corporation's stock, except in very limited circumstance. It applies only to directors or officers of the corporation and those holding greater than 10% of the stock and is designed to prevent insider trading by those most likely to be privy to important corporate information.
Section 10(b) of the Securities and Exchange Act of 1934 makes it unlawful for any person "to use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe." To implement Section 10(b), the SEC adopted Rule 10b-5, which provides, in relevant part:
It shall be unlawful for any person, directly or indirectly . . .,
(a) to employ any device, scheme, or artifice to defraud,
(b) to make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, or
(c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of a security.
Liability for insider trading
Liability for insider trading violations cannot be avoided by passing on the information in an "I scratch your back, you scratch mine" or quid pro quo arrangement, as long as the person receiving the information knew or should have known that the information was company property. It should be noted that when allegations of a potential inside deal occur, all parties that may have been involved are at risk of being found guilty.
For example, if Company A's CEO did not trade on the undisclosed takeover news, but instead passed the information on to his brother-in-law who traded on it, illegal insider trading would still have occurred.
Insider Trading - Position in India
According to Regulation 2 (e) of the Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 1992 “insider” means any person who, is or was connected with the company or is deemed to have been connected with the company, and who is reasonably expected to have access to unpublished price sensitive information in respect of securities, or who has received or has had access to such unpublished price sensitive information;
Price Sensitive Information
According to Regulation 2 (ha) of the Regulations, “price sensitive information” means any information which relates directly or indirectly to a company and which if published is likely to materially affect the price of securities of company.
According to the Explanation given in this Regulation — the following shall be deemed to be price sensitive information:—
(i) periodical financial results of the company;
(ii) intended declaration of dividends (both interim and final);
(iii) issue of securities or buy-back of securities;
(iv) any major expansion plans or execution of new projects;
(v) amalgamation, mergers or takeovers;
(vi) disposal of the whole or substantial part of the undertaking; and
(vii) significant changes in policies, plans or operations of the company;
Prohibition on dealing, communicating or counseling on matters relating to insider trading (R.3& 3A)
No insider shall—
(i) either on his own behalf or on behalf of any other person, deal in securities of a company listed on any stock exchange [when in possession of] any unpublished price sensitive information; or
[(ii) communicate counsel or procure directly or indirectly any unpublished price sensitive information to any person who while in possession of such unpublished price sensitive information shall not deal in securities :
Provided that nothing contained above shall be applicable to any communication required in the ordinary course of business [or profession or employment] or under any law]
No company shall deal in the securities of another company or associate of that other company while in possession of any unpublished price sensitive information.
Violation of provisions relating to insider trading (R.4)
Any insider who deals in securities in contravention of the provisions of regulation 3 [or 3A] shall be guilty of insider trading.
Penalty for insider trading (Sec 15G)
If any insider who,-
(i) either on his own behalf or on behalf of any other person, deals in securities of a body corporate listed on any stock exchange on the basis of any unpublished price sensitive information; or
(ii) communicates any unpublished price- sensitive information to any person, with or without his request for such information except as required in the ordinary course of business or under any law; or
(iii) counsels, or procures for any other person to deal in any securities of anybody corporate on the basis of unpublished price-sensitive information,
Shall be liable to a penalty of twenty-five crore rupees or three times the amount of profits made out of insider trading whichever is higher.
Insider trading is considered to be a serious economic offence. The enormity of the challenge posed by economic offenders’ calls for a professional and pro-active approach. Despite regulations, several countries have found it difficult to frame insiders because of the nature of the offence. Identifying the insider and then proving the charge is an onerous task due to the heavy burden of proof involved in each case. Although SEBI has implemented laws on insider trading yet the number of offenders actually brought to book is dismal. In fact, many a time SEBI has been unable to detect instances of insider trading. SEBI Regulations do stipulate safeguards like initial and continual disclosures by insiders to companies, code of conduct to be followed by listed companies etc. but there is room for improvement.
It is important to remember that capital markets are a source of large pool of funds for all kinds of investors. Most Funds say that the systems and processes are proper but one individual can beat these systems by being unethical. The argument is unacceptable. If systems are proper that means front running should not be possible. There will always be some individuals who will try to beat the system. Process has to be continuously upgraded to catch these people. Hence, it becomes important that the regulator has to maintain its integrity and efficiency by following a consistent approach which is designed to provide a level playing field in enforcement securities laws of the land. Nobody is more equal than the others and, therefore, trading by ‘insiders’ to the detriment of ‘outsiders’ should be strictly dealt with. Therefore, fighting against Insider trading is a biggest challenge before the Indian Watch Dog, the "SEBI”
Therefore, it is all the more important that the SEBI should strong enough to play a proactive and vigilant role by introducing stringent measures designed to provide greater deterrence, detection and punishment of violations of insider trading law. It should introduce greater transparencies, keep a check on sudden abnormal trends in the market, provide adequate safeguards like prohibition of trading by insiders prior to corporate announcements viz. mergers, takeovers, monitor the trading patterns and undertake swift investigations in case of a spurt of buying or selling activity in the market, take stringent action against the guilty to act as deterrence for others. At the same time, it is the prerogative of companies to strictly adhere to the code of conduct prescribed by SEBI, and ensure good corporate governance in order to protect the overall interest of investors against unfair and inequitable practices of insider trading.
IV. RATIONALE OF STUDY
Insider trading has the dangerous potential of market manipulation and misuse of un published price sensitive information by a privileged few insiders who are in possession of such information. This kind of malpractice defeats the very principle of fair and ethical business practices, besides spelling a doom for the common and small investors. The Capital Markets in India have been victims of this malady for years and more particularly when liberalization attracted small investors to the markets. Instances of artificially jacking up prices of shares and thereby inducing gullible people to buy them are also common. People have lost heavily on account of frauds of this nature committed by unscrupulous market players.
Till the early nineties, the Indian economy functioned in an environment regimented by control and regulations. With the reforms initiated by the Government, the economy moved from controlled to market driven. The forces of globalization and liberalization compelled the corporate to restructure the business by adopting the tools, viz., mergers, amalgamations and takeovers. All these activities, in turn, impacted the functioning of the capital market, more particularly the movement of share prices.
In tune with these changes, certain developments have been brought into Legal frame work governing the Securities market in India. The four main legislations governing the securities market in India are (1) the Securities Contracts (Regulation) Act,1956, which provides for regulation of transactions in securities through control over stock exchanges; (2) the SEBI Act,1992 which establishes SEBI to protect investors and develop and regulate securities market; (3) the Depositories Act,1996 which provides for electronic maintenance and transfer of ownership of ‘demat’ securities and (4) the Companies Act,1956, which sets out the code of conduct for the corporate sector in relation to issue, allotment and transfer of securities, and disclosures to be made in public issues.
SEBI (Prohibition of Insider Trading) (Amendment) Regulations, 2011
Securities Exchange Board of India vide notification no LAD-NRO/GN/2011-12/16/26150, Dated 16-8-2011 has issued further regulations regarding ”Disclosure of interest or holding in listed companies by certain persons – Initial Disclosure.” through SEBI (Prohibition of Insider Trading) (Amendment) Regulations, 2011. These Regulations envisages:
“(2A) Any person who is a promoter or part of promoter group of a listed company shall disclose to the company in Form B the number of shares or voting rights held by such person, within two working days of becoming such promoter or person belonging to promoter group ;
“(4A) Any person who is a promoter or part of promoter group of a listed company, shall disclose to the company and the stock exchange where the securities are listed in Form D, the total number of shares or voting rights held and change in shareholding or voting rights, if there has been a change in such holdings of such person from the last disclosure made under Listing Agreement or under sub-regulation (2A) or under this sub-regulation, and the change exceeds INR 5 lakh in value or 25,000 shares or 1% of total shareholding or voting rights, whichever is lower.”
Change of Takeover threshold Limits (2011)
In order to open up India’s market for corporate control new takeover regulations are announced by markets regulator SEBI on 28th July, 2011. The Code has three major changes which are as follows: -
1) The trigger point or threshold limit has been changed from 15% to 25%. This means that if the person/entity or persons acting in concert acquire shares of 25% of the company, the open offer would have to be made.
2) The size of the open offer has been increased from 20% to 26%. The earlier limit of offer has been changed as the threshold limit has been changed and it makes sense that the size of the open offer should be bigger than the threshold limit.
3) The contentious issue of non-compete fee has been abolished. This is a demand which has been made by minority shareholders and it has been finally accepted.
In other words, under the changed regulations, an acquirer has to make an open offer once he crosses the threshold holding of 25% in a company, rather than 15% as before, and the open offer has to be for 26% (20% earlier) and at the full price at which the threshold was crossed. No more sweet deals for promoter-sellers in the form of ‘non-compete fees’, an element of the share price that was denied to minority shareholders, while making the open offer. The acquirer would end up with a controlling stake, and shareholders, with a higher price than was likely in the previous regime. The raising of the open-offer trigger threshold has two effects. It makes it easier to fund enterprises -private equity player can hold a much larger stake, just a sliver lower than 25%, without getting into control mode. At the same time, the fact that someone can come so close to the 26% threshold that endows the holder with veto rights on special resolutions would put the promoters on their toes, even when that holding is below the 25% takeover threshold.
Efficient transfer of resources from those having idle resources to others who have pressing need for them is achieved through financial markets. Stated formally, financial markets provide channels for allocation of savings to investment. These provide a variety of assets to savers as well as various forms in which the investors can raise funds and thereby decouple the acts of saving and investment. The savers and investors are constrained not by their individual abilities, but by the economy’s ability, to invest and save respectively. The financial markets, thus, contribute to economic development to the extent that the latter depends on the rates of savings and investment.
An efficient and robust financial system acts as a powerful engine of economic development by mobilising resources and allocating the same to their productive uses. It reduces the transaction cost of the economy through provision of an efficient payment mechanism, helps in pooling of risks and making available long-term capital through maturity transformation. By making funds available for entrepreneurial activity and through its impact on economic efficiency and growth, a well functioning financial sector also helps alleviate poverty both directly and indirectly. In a developing country, however, financial sectors are usually incomplete in as much as they lack a full range of markets and institutions that meet all the financing needs of the economy.
The frame work of hypothesis is based on the following postulates:
1) Efficient transfer of resources from those having idle resources to others who have pressing need for them is achieved through financial markets.
2) Financial Markets provide channels for allocation of savings to investment.
3) The Financial Markets contribute to economic development to the extent that the latter depends on the rates of savings and investment.
4) As a natural corollary of the liberalization and globalization, the Indian Capital Market has undergone a sea change in terms of innovations, growth and deregulation.
5) The securities market fosters economic growth to the extent that it:
a) augments the quantities of real savings and capital formation from any given level of national income;
b) increases net capital inflow from abroad;
c) raises the productivity of investment by improving allocation of investable funds; and
d) reduces the cost of capital.
6) The securities market provides a fast-rate breeding ground for the skills and judgment need for entrepreneurship, risk bearing, port folio selection and management.
7) An active securities market serves as an ‘engine’ of general financial development may, in particular, accelerate the integration of informal financial systems with the institutional financial sector. Securities directly displace traditional assets such as gold and stocks of produce or, indirectly, may provide port folio assets for unit trusts, pension funds and similar FIs that raise savings from the traditional sector.
8) The existence of the securities market enhances the scope, and provides institutional mechanisms, for the operation of monetary and financial policy.
9) The responsibility for regulating the securities market in India is shared by the Department of Economic Affairs (DEA), Ministry of Corporate Affairs (MCA), Reserve Bank of India (RBI) and SEBI.
10)The twin objectives of the regulator (SEBI) in India are:
a) to protect the interest of investors in securities;
b) to promote the development of, and to regulate the securities market by taking appropriate measures.
As is well-known at the present day, a research scholar cannot depend upon any one particular method for the preparation of a thesis. A combination of different methods is required to achieve the best possible results. Thus a Historical-cum Analytical method has been applied mainly in the preparation of the present work. Where ever necessary, comparative and critical methods also are employed to have a detailed study of the subject under consideration.
VII. SOURCES OF INFORMATION
The required materials for the thesis have been collected mainly by applying the Doctrinal Approach. This approach deals with formal sources of Law like Legislation, Case law, Text Books, Articles etc. It is basically textual in approach as contrasted to Non-Doctrinal Approach which is primarily contextual in nature. In the preparation of this thesis, by adopting the above-mentioned technique, data have been collected from various enactments including the SEBI Act, 1992; The Companies Act, 1956; The Securities Contracts (Regulation) Act, 1956 and The Depositories Act, 1996 and the rules and regulations made under these enactments, Reports of the Securities Exchange Commission (SEC) USA, and the reports of the Securities and Exchange Board of India (SEBI), judgments of the Securities Appellate Tribunal (SAT) / Company Law Board (CLB) / Supreme Court, High Courts etc.
The thesis is divided into 6 chapters as under:
Chapter – I
Emerging Financial Markets: In this chapter an outline of the scheme of research intended for the thesis is brought out. The objectives of the study, methodology, sources of information are also discussed in this chapter.
Chapter – II
Capital Markets: In this chapter the Primary and Secondary Market functions, Capital Market Instruments like Prime Instruments, Hybrid Instruments, Derivatives, Mutual Funds, Venture Capital, Collective Investment Schemes and the importance of Credit Rating have elaborately brought out.
Chapter – III
Legal and Regulatory Frame Work: In this chapter, the relevant provisions of law under different enactments including the SEBI Act, 1992; The Companies Act, 1956; The Securities Contracts (Regulation) Act, 1956 and The Depositories Act, 1996and the rules and regulations made under these enactments have been discussed elaborately.
Chapter – IV
Judicial Approach: In this chapter, the relevant case laws and the approach of the courts / quasi judicial authorities in interpreting the relevant provisions of the statutes and in imposing the penalties in case of violations of the prevailing laws have discussed elaborately.
Chapter – V
Recent Trends and Reforms: A developed securities market enables all individuals, no matter how limited their means, to share the increased wealth provided by competitive private enterprises. The legal structure of society forms an important pillar in the fight against corrupt practices in the financial markets. To fight against these corrupt practices, there is a need for a strong legal framework. In India, the legal framework for curbing and controlling Insider Trading is primarily based on statutory and common law. Certain changes have taken place recently in the Indian regulatory framework, as the existing legislations and other regulations are not sufficient to tackle this menace; there still remain some areas that require change. In this chapter, the changes that have taken place recently in the regulatory frame work are brought out elaborately.
Chapter – VI
Conclusion & Recommendations: In the last chapter, a brief summary of the thesis together with observations and findings of the Researcher have been highlighted.
1) G.S. Batra : Financial Services and Market (Deep & Deep Publication)-2005
2) L.M. Bhole : Financial Institutions and Markets (TA MC-Graw Hill)
3) H.R. Machiraju; The Working of Stock Exchange in India.
4) H.R. Machiraju : Indian Financial System (Vikas)
5) V. A. Avadhani : Investment & Securities Market in India (Himalaya Publishing House)
6) Young Patrick; Capital Market Revolution: The Future of Markets in an Online Word.
7) Sanjeev Aggarwal; Guide to Indian Capital Market; Bharat Law House, 22, Tarun Enclave, Pitampura, New Delhi – 110034.
8) V.L. Iyer; SEBI Practice Munual, Taxman Allied Service (P) Ltd., 59/32, New Rohtak Road, New Delhi – 110005.
9) M.Y. Khan; Indian Financial Systems; Tata McGraw Hill, 4/12, Asaf Ali Road, New Delhi – 110002.
II. Journals, Articles and Reports
1) NSE (2009). Indian Securities Market: A Review, Mumbai: National Stock Exchange of India.
2) Planning Commission (2008). A Hundred Small Steps-Report of the Committee on Financial Sector Reforms, New Delhi: Sage Publications India.
3) SEBI: Various reports of the annual report from 1992-93 to 2008- 09.
4) Corporate Law Adviser; Corporate Law Adviser, Post Bag No. 3, Vasant Vihar, New Delhi – 110052.
5) Supreme Court Journal; 2011(7) SCJ; Article By Dr T. Padma titled ‘What is an insider trading?’ Need for stringent regulations to fight against this menace – an overview.
III. Legislations, Orders and Regulations
1) Securities Exchange Board of India Act, 1992
2) The Securities Contracts (Regulation) Amendment Act, 2007
3) Securities Contracts (Regulation) Act, 1956
4) Depositories Act, 1996
5) The Companies Act, 1956 (As Amended)
IV. Newspapers and Magazines
1) Chartered Accountant, Monthly Journal of ICAI.
2) Chartered Secretary; Monthly Journal of ICSI.
3) Management Accountant; Monthly Journal of ICWAI.
5) www. mca.gov.in
 In United States v. O'Hagan, 521 U.S. 642, 655 (1997)
 The Securities and Exchange Board of India
 Initial public offer
 Dalal street located in Mumbai, India
 A carry-forward system in stock trading
 Information Page from U S Securities and Exchange Commission accessed on 20th September, 2011
 In the U.S., it is defined as beneficial owners of ten percent or more of the firm's equity securities
 Excerpts from Speech of SEC Staff on ‘Insider Trading – A U.S. Perspective’ at 16th International Symposium on Economic Crime, Jesus College, Cambridge, England
 The U.S. Securities and Exchange Commission (frequently abbreviated SEC) is a federal agency which holds primary responsibility for enforcing the federal securities laws and regulating the securities industry, the nation's stock and options exchanges, and other electronic securities markets in the United States. In addition to the 1934 Act that created it, the SEC enforces the Securities Act of 1933, the Trust Indenture Act of 1939, the Investment Company Act of 1940, the Investment Advisers Act of 1940, the Sarbanes-Oxley Act of 2002 and other statutes. The SEC was created by section 4 of the Securities Exchange Act of 1934 (now codified as 15 U.S.C. § 78d and commonly referred to as the 1934 Act).
 CEO is the highest ranking executive in a company whose main responsibilities include developing and implementing high-level strategies, making major corporate decisions, managing the overall operations and resources of a company, and acting as the main point of communication between the board of directors and the corporate operations. The CEO will often have a position on the board, and in some cases is even the chair.
 Amended by the SEBI (Insider Trading) (Amendment) Regulations, 2002, w.e.f. 20.02.2002.
 Substituted for “on the basis of”, ibid.
 Substituted by the SEBI (Insider Trading) (Amendment) Regulations, 2002, w.e.f.20.2.2002. Prior to substitution, clause (ii) read as under:
"(ii) communicate any unpublished price sensitive information to any person, with or without his request for such information, except as required in the ordinary course of business or under any law; or"
 Inserted by the SEBI (Prohibition of Insider Trading) (Second Amendment) Regulations, 2002, w.e.f. 29.11.2002.